This past week, the legal blogosphere has been abuzz (see Sentencing Law & Policy, Volokh, TalkLeft, and Gideon) over a decision last week in a federal child porn prosecution. In amidst the 236 pages (288 with the appendix) of issues covered by Judge Jack Weinstein in US v. Polizzi is a fairly bold proposition - that a jury should be informed of the sentencing consequences of its verdict. Depending on your point of view, it's either a bold decision that recognizes the changed landscape of federal sentencing in the past decade and calls for a rethinking of established precedents or the work of a criminal-friendly activist judge who's off tilting at windmills and wasting everyone's time.
I. The Crime, The Punishment
Several years ago, Polizzi claims, he stumbled upon child porn while looking for adult porn, was shocked at what he saw, and began downloading all he could find with the intent of turning the evidence over to police. He never did, due to his own history of being sexually abused and his distrust of law enforcement. He never traded images with anyone else, just downloaded and viewed them. He was discovered when an undercover police officer joined an online child porn club of which Polizzi was a member and tracked down members via IP addresses.
Polizzi was charged and convicted of multiple counts of receipt and possession of child pornography. The statute, 18 USC §2252, provides a 0-10 year sentence for possession of child porn, but a 5-20 year term for receipt. Thus, once convicted of receiving child pornography, Polizzi was subject to, at the very minimum, five years in prison.
Therein lies the rub. Polizzi repeated asked that the jury be informed that, if it convicted him on the receipt charges, he would be subject to a mandatory minimum sentence. Weinstein denied the motion, as one would expect. Outside of a few states in which the jury actually imposes sentences (and death penalty cases, of course), courts have routinely held that jurors aren't to know about the sentencing consequences of their verdicts.
II. How Sentencing Works (or Doesn't)
Sentences, typically, have been the judge's territory. A guilt verdict sets a broad range of options for the court to consider. Then, after considering a wide range of information, some of which has nothing to do with a particular defendant's guilt or innocence, the judge fashions the most appropriate sentence.
That's the theory, anyway. It comes from a 1949 Supreme Court case called Williams v. New York, 337 US 241 (1949), which dealt with what kind of evidence a court could consider while considering a death sentence. Williams was decided at a time when the rehabilitative model of sentencing was at its height. Rehabilitation required sentences tailored to each individual defendant. As a result, the amount and type of information that a judge could consider when imposing sentence was nearly limitless. As the Court put it:
Under the practice of individualizing punishments, investigation techniques have been given an important role. Probation workers making reports of their investigations have not been trained to prosecute but to aid offenders. Their reports have been given a high value by conscientious judges who want to sentence persons on the best available information rather than on guesswork and inadequate information. To deprive sentencing judges of this kind of information would undermine modern penological procedural policies that have been cautiously adopted throughout the nation after careful consideration and experimentation. We must recognize that most of the information now relied upon by judges to guide them in the intelligent imposition of sentences would be unavailable if information were restricted to that given in open court by witnesses subject to cross-examination. And the modern probation report draws on information concerning every aspect of a defendant's life. The type and extent of this information make totally impractical if not impossible open court testimony with cross-examination. Such a procedure could endlessly delay criminal administration in a retrial of collateral issues.Id. at 249-250 (footnotes omitted). That theory has been written into sentencing law ever since. See, e.g., 18 USC §3661 ("No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.").
Williams is a creature of its time - a time that has come and gone (largely) in sentencing. Where untrammeled discretion at sentencing was once the order of the day, now federal judges are limited by Guidelines and, as relevant here, mandatory minimums, when imposing sentences. Even Booker and its progeny haven't changed that fact.
III. Back to Judge Weinstein
So, what does this mean in Polizzi's case? As it turns out, after the jury returned its verdict, Judge Weinstein spoke with several of the jurors. They believed that treatment, not imprisonment, is what Polizzi needed, due to his abuse-induced mental illness. When informed that he would face a mandatory five years in prison, they declared that they would have voted not guilty (by reason of insanity) had they known that fact.
Armed with that information, Judge Weinstein granted a defense post-trial motion for a new trial on the receipt charges. He reasoned that while precedent foreclosed the argument that a defendant had a right to a jury instruction about sentencing consequences, it was not so clear that courts were precluded from informing the jury of those consequences. Regardless, Booker changed everything, given its emphasis on the jury's role in sentencing proceedings. He also noted that the result would not set Polizzi free, as even a not guilty by reason of insanity verdict would mean confinement (perhaps for a long time - ask John Hinkley).
It seems to me, after an admittedly quick reading, that Judge Weinstein is not as far off the reservation as, say, Orin Kerr over at Volokh, makes him seem. It's absolutely true to say that Polizzi wasn't entitled to such an instruction under the current state of the law. But Judge Weinstein's analysis doesn't appear to fly in the face of that law, so much as it finds the cracks in the precedents and slips gingerly through them. If a colleague brought that argument to me and said, "what do you think of this?", I'd probably shoot it down (particularly in the Fourth Circuit). But I wouldn't call it frivolous. The mandatory nature of the punishment, it seems to me, changes the calculus a bit. Or at least provides some wiggle room.
IV. The Other "N" Word - Nullification
A lot of the talk about this decision comes from the fact that Judge Weinstein is practically, if not explicitly, endorsing the power of jury nullification. Jury nullification, to be brief, is the power of the jury to acquit a defendant even when there is evidence to support a conviction proven beyond a reasonable doubt, usually as a form of protest or expression of disgust with the particular law being enforced. Think OJ. While Judge Weinstein adamantly argues that he's not endorsing nullification:
The right of jurors to be told of the high stakes of their decisions under a mandatory sentencing scheme so that they can decide to find a defendant guilty or innocent or guilty of a lesser crime 'is a point independent of the right to nullify.'it's hard to see any practical difference.
Whatever the normative arguments in favor or against nullification (here's a lively discussion of them), it's had a checkered legal past. It's always been a part of the jury system and is inherent a the scheme in which the state/Government has no power to appeal a not guilty verdict. Courts have generally held that juries don't have a right to be told about that power, but there's little than can be done if the choose to exercise it.
I'm skeptical about giving nullification a larger role in the criminal justice system. For one thing, as someone who thinks that it's hard enough to get a jury to honestly apply a beyond a reasonable doubt standard, I think encouraging nullification would lead to (if you will) reverse nullification - convictions against the weight of evidence. From a defense perspective, I don't think the payoff would be worth the cost.
For another, in a sentencing context, how much of the info traditionally presented to a judge gets to the jury so they can exercise their full discretion? Consider, for example, a felon in possession prosecution, which would normally lead to a 0-10 year sentence. However, if the defendant has three prior qualifying convictions under the Armed Career Criminal Act, the sentence jumps to a mandatory 15 years (with a life max). If a jury is told about the 15-year mandatory, must they know why it's that high? If not, doesn't that sort of defeat the purpose of telling the jury in the first place?
V. Concluding Thoughts
In the end, I think Judge Weinstein is likely to be reversed on appeal, and I imagine he probably knows this. Then why go through such trouble? Couldn't he, as some folks have suggested, simply written the same opinion but concluded, "in spite of all that, binding precedent requires me to reach a contrary result, which I hope the Court of Appeals or Supreme Court will remedy."?
Sure, but it wouldn't bring the kind of attention that this tactic did. Knowing that the defendant would appeal a negative ruling anyway, it likely won't consume any more judicial resources when all is said and done. But it might spark some discussion and force the courts higher up to reconsider what seems to be a settled area of law. Maybe, in the end, it stays settled. And maybe it doesn't. We'll see.